Mallory v. Riggs

• Decision Date: 19 October 1888
• Citation: 76 Iowa 748,39 N.W. 886
• Parties: MALLORY ET AL. v. RIGGS.
• Court: Iowa Supreme Court

76 Iowa 748

39 N.W. 886

MALLORY ET AL.

v.RIGGS.

Supreme Court of Iowa.

October 19, 1888.

Appeal from district court, Sioux county; SCOTT M. LADD, Judge.

Action in equity to quiet the title to real estate. Judgment for the defendant, and the plaintiffs appeal.H. E. Long, for appellants.

E. C. Herrick, for appellee.

SEEVERS, C. J.

The plaintiffs claim title to the real estate in controversy under a patent from the United States, and the defendant under a tax title. John Van Nortwick purchased the land of the general government, and a patent was issued to him, under whom the plaintiffs claim. In 1864 the treasurer of Sioux county executed a tax deed for the premises to Charles H. Miller, in pursuance of the sale for the delinquent taxes of 1858 and 1859. Miller conveyed the premises in controversy to Eli Johnson in 1870, and the latter conveyed the same to the defendant, in 1877. The defendant pleaded and relied on the tax title, and further pleaded that in 1875 Johnson commenced an action in the district court of Sioux county against John Van Nortrick to quiet the title to the premises in controversy, and that a decree was duly entered in such action, granting the plaintiff therein the relief asked. The plaintiffs, in a reply, pleaded several matters which, for the purposes of this opinion, it will be conceded were established on the trial, and by reason thereof the tax title must be regarded as void, unless the plaintiffs are estopped from setting up the same because of the prior adjudication in the action commenced by Johnson. The plaintiffs contend there is no estoppel because of the difference between the names of John Van Nortwick and John Van Nortrick. The difference in spelling is immaterial, because there is no appreciable difference in the sound when the two names are spoken. To make such difference, the accent must be placed upon the last syllable, and we do not believe the name is ordinarily so spoken, but that the accent is placed on the first two syllables. Conceding this to be so, the sound conveyed to the ear, whether “w” or “r” is used, is not distinguishable, or, if so, the variance is slight, trivial, and not substantial. Certainly the variance in sound is not as great as between “Josiah” and “Josier,” or “Belton” and “Beton,” or “Japheth” and “Japhath,” or “Benedetto” and “Beneditto,” or “Whinyard” and “Winyard,” or “Deadenia” and “Diadenia,” and yet, in all these instances, the variance was held to be immaterial....